DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NICOLE LIFAITE,
Appellant,
v.
WILNER JEAN CHARLES,
Appellee.
No. 4D21-1038
[February 9, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No.
502017DR006466XXXXNB.
Ralph T. White of The Law Office of RT White, Palm Beach Gardens, for
appellant.
Nicholas F. Demes and John H. Reynolds of Reynolds & Reynolds, P.L.,
West Palm Beach, for appellee.
GERBER, J.
The former wife appeals from the circuit court’s final judgment of
dissolution of marriage. The former wife argues the circuit court erred in
its equitable distribution and prospective child support calculations, and
by failing to award retroactive child support.
We agree with the former wife’s arguments, a portion of which the
former husband concedes. Thus, we reverse the final judgment to the
extent argued by the former wife. We will address each of the former wife’s
arguments in turn.
Equitable Distribution
In the final judgment, the circuit court allocated certain marital assets
to be split 50-50 between the parties: existing bank account funds; child
support monies which the former husband had paid for his child from a
previous relationship; and rental proceeds. The former wife argues the
circuit court’s 50-50 allocation was in error because the trial evidence
showed the former husband had sole access to, and control over, the
subject assets.
We agree that the circuit court erred in allocating 50-50 the existing
bank account funds to which the former wife had no access, and the child
support monies which the former husband had paid for his child from a
previous relationship. However, the circuit court properly allocated 50-50
the parties’ rental proceeds.
As to the existing bank account funds, the former husband did not
dispute he had sole access to those funds. The circuit court, however,
improperly found the former wife also had access to those funds. The
circuit court should have found the former husband had sole access to
those funds.
Similar reasoning applies to the circuit court’s 50-50 allocation of the
child support monies which the former husband paid for his child from a
previous relationship. The former husband did not dispute those monies
were solely his assets.
However, the circuit court properly allocated 50-50 the parties’ rental
proceeds. As the circuit court found in the final judgment:
[N]either party made any effort to ensure the LLC [which
held the rental properties] maintained accurate
financial/accounting records. … [T]he Court is unable to
determine what if any of the LLC investment properties
produced any net profits.
... [T]he parties[’] questionable business practices were not
only known to both parties but were also readily accepted by
both parties.
… As such, … [a]ny assets/liabilities of the LLC shall be
shared equally between the parties.
Based on the foregoing, we reverse the final judgment’s equitable
distribution determination, and remand for the circuit court to reallocate
solely to the former husband the existing bank account funds to which the
former wife did not have access, and the child support monies which the
former husband had paid for his child from a previous relationship, and
then recalculate the equitable distribution’s equalization payment due to
the former wife accordingly. See Doyle v. Doyle,
789 So. 2d 499, 501 (Fla.
5th DCA 2001) (“[N]otwithstanding the trial court’s wide discretion in
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dissolution matters, this court must correct mathematical errors made by
the trial court.”) (citation omitted).
Prospective Child Support
The former wife argues the circuit court erred in calculating prospective
child support in three respects, by: (1) using an incorrect income amount
for the former wife; (2) using an incorrect income amount for the former
husband; and (3) failing to include the former wife’s childcare expenses in
its computation. We agree in all three respects.
First, as the former wife submits, and the former husband concedes,
the circuit court’s calculation used an incorrect income for the former wife.
The circuit court used $4,217.40 as the former wife’s net monthly income.
However, the former wife’s undisputed net monthly income was $3,520.00.
The discrepancy appears to be due, in part, to the circuit court’s failure to
subtract the former wife’s monthly health insurance expense in its
calculation. See § 61.30(3)(e), Fla. Stat. (2020) (“Net income is obtained by
subtracting allowable deductions from gross income. Allowable
deductions shall include … [h]ealth insurance payments, excluding
payments for coverage of the minor child.”).
Second, as the former wife submits, and the former husband also
concedes, the circuit court’s calculation used an incorrect income amount
for the former husband and failed to make findings as to how the court
arrived at that incorrect amount. The parties’ pretrial stipulation and the
former husband’s third financial affidavit identified the former husband’s
net monthly income as $3,823.10. The day before trial, the former
husband filed a fourth financial affidavit which identified his net monthly
income as $2,443.10, which he calculated based on purported negative
monthly rental income. On the former husband’s proposed child support
guidelines worksheet, he identified his net monthly income as $4,228.00.
Presumably, because of these varying amounts, the circuit court’s final
judgment expressly found: “The court having carefully considered the
[h]usband’s testimony regarding his financial situation does not find it
credible, true or accurate.”
Despite that finding, however, the circuit court’s final judgment does
not explain, and no view of the evidence supports, the circuit court’s
ultimate determination—as identified in its child support guidelines
worksheet—that the former husband’s gross monthly income was
$4,085.00, and his net monthly income was $2,646.76. In this respect,
the circuit court’s final judgment was deficient. See Segall v. Segall,
708
So. 2d 983, 988 (Fla. 4th DCA 1998) (“[I]n the absence of explicit factual
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findings concerning the actual incomes attributable to the [h]usband and
the [w]ife, the amount and source of any imputed income, the probable
and potential earnings level, and the adjustments to income, the trial
court’s final judgment was deficient.”).
Third, as the former wife argues, and the former husband does not
dispute, the circuit court erred when it calculated prospective child
support without considering the former wife’s monthly child care
payments. See § 61.30(7), Fla. Stat. (2020) (“Child care costs incurred due
to employment … of either parent shall be added to the basic [child
support] obligation.”).
The final judgment’s child support guidelines worksheet lists “$0” for
childcare costs. However, both parties’ updated financial affidavits listed
an amount for “monthly … babysitting, or [child] care.” The former
husband’s third affidavit—which was executed less than three months
before trial commenced—listed $200, and the former wife’s affidavit listed
$310. Additionally, the former wife testified that she paid the childcare
expenses, while the former husband testified he “never paid … in 2020 for
… babysitting or [child] care.”
In sum, because the circuit court used incorrect income amounts for
both parties, and failed to include childcare costs in its child support
calculation, we reverse the final judgment’s prospective child support
determination and remand for the circuit court to recalculate prospective
child support using the correct figures. See Cooper v. Cooper,
760 So. 2d
1048, 1049 (Fla. 2d DCA 2000) (reversing and remanding the final
judgment for the trial court to “reconsider its child support award and set
forth findings upon which the calculation is based, including the amount
and source of the parties’ actual income”); Gillette v. Gillette,
226 So. 3d
958, 963 (Fla. 4th DCA 2017) (“[O]n remand[,] the court should recalculate
child support after including the child care costs incurred by the …
[w]ife.”).
Retroactive Child Support
The former wife argues the circuit court erred by failing to award
retroactive child support where the former husband did not dispute he had
not paid the full child support amount during the parties’ separation, had
not exercised any overnight timesharing, and was able to pay the
retroactive support.
We agree with the former wife’s argument. Section 61.30(17), Florida
Statutes (2020), provides: “In an initial determination of child support ...
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the court has discretion to award child support retroactive to the date
when the parents did not reside together in the same household with the
child, not to exceed a period of 24 months preceding the filing of the
petition.” § 61.30(17), Fla. Stat. (2020).
However, “[a] trial court abuses its discretion when it denies retroactive
child support where there is a demonstrated need for the child support
and the parent has the ability to pay the retroactive support.” Fla. Dep’t
of Revenue o/b/o Simpson v. Carreira,
313 So. 3d 175, 177 (Fla. 1st DCA
2021) (citation omitted).
Here, the former wife demonstrated a need for the retroactive child
support and the former husband has the ability to pay the retroactive
support. Thus, we remand for the circuit court to calculate and award
retroactive child support through the final judgment’s date.
Conclusion
In sum, we: (1) reverse the final judgment’s equitable distribution
determination, and remand for the circuit court to reallocate solely to the
former husband the existing bank account funds to which the former wife
did not have access, and the child support monies which the former
husband paid for his child from a previous relationship, and then
recalculate the equitable distribution’s equalization payment due to the
former wife accordingly; (2) reverse the final judgment’s prospective child
support determination and remand for the circuit court to recalculate
prospective child support using the correct figures; and (3) remand for the
circuit court to calculate and award retroactive child support through the
final judgment’s date.
Those portions of the final judgment not addressed in this opinion are
affirmed without further discussion.
Affirmed in part, reversed in part, and remanded with instructions.
MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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